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Proposing common issues in certification applications: a job for plaintiffs’ counsel or the courts?

In a recent decision (“MacInnis”), the Saskatchewan Court of Appeal held that a certification judge erred by not attempting to reformulate overly broad and unspecific proposed common issues. The SKCA remitted certification back to the lower court to determine whether the proposed common issues can be suitably modified and the action certified.

Key takeaways from this case include that:

  • medical product cases are not categorically certifiable;
  • certification judges can reformulate inadequate pleadings even where the inadequacies stem from the shortcomings of plaintiffs’ counsel; and
  • while certification decisions are discretionary and entitled to deference, failure to modify and/or permit amendment of proposed common issues where doing so would facilitate the efficient resolution of applications may constitute palpable and overriding error.

This case also serves as a warning to defendants in proposed class proceedings not to depend on a poorly drafted certification application to win the day. Rather, defendants would be wise to defend on the basis of the common issues as drafted and as might be more compellingly reformulated.


The Appellant was the proposed representative plaintiff seeking class action certification for damages and other relief in relation to a medical device (the “Product”). The certification application was dismissed with costs.

While the certification judge considered six proposed common issues, only four were central to the appeal:

  1. Did the Product pose an unreasonable risk of bleeding, bloating and other side effects?
  2. Did the Product have any benefits that were unique to the Product or that exceeded the benefits of other artificial birth control procedures?
  3. Having regard to the answers to common issues 1 and 2, did the defendants breach the standard of care by distributing the Product for sale in Canada?
  4. If the answer to common question 3 is no, and having regard to the answer to common question 1:
    a) Did the Product directions for use provide reasonable instructions for using the Product and for managing the risks of bleeding, bloating and other side effects?
    b) Did the Product directions for use provide a clear, current and complete warning of the risks of bleeding, bloating and other side effects?

Certification Decision

The certification judge was satisfied that the claim disclosed a cause of action and there was an identifiable class. After reviewing the proposed common issues, the certification judge found that the first three were pivotal and the rest fundamentally depended on their certification. He concluded that the phrases “and other side effects” in common issue #1 and “risks of” in common issue #4 were stated too broadly and lacked commonality, and proceeded to reject all proposed common issues. The certification judge also concluded that even if any common issues were certifiable, a class action was not the preferable procedure.

Failure to Cure the Defects

The Appellant advanced nine separate grounds on appeal. Only the eighth ground will be discussed here: the Appellant’s claim that the certification judge erred by failing to amend the common issues.

The SKCA noted that a certification judge may modify proposed common issues in some circumstances pursuant to section 7(1) of the Class Actions Act, SS 2001, c C-12.01:

7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced.

However, the SKCA confirmed that this authority is not unfettered and should be exercised with caution where it would fundamentally alter the proposed common issues. Nevertheless, the SKCA found that by failing to order either (1) an amendment deleting the words the certification judge found impermissible, or (2) a request for further submissions as to alternative formulations, the certification judge committed a palpable and overriding error, and remitted the application back to the lower court for reconsideration.

Despite finding that many grounds of the appeal had “their genesis in the shortcomings” of the Appellant’s own materials and pleadings, MacInnis walks a fine line between an exercise of discretion and simply doing plaintiffs’ counsels’ job for them. The decision suggests that where modification by the court and/or the granting of permission to amend proposed common issues would facilitate the efficient resolution of certification applications, a failure to do so risks a finding that the court has committed a palpable and overriding error.



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